Defendants' Memorandum in Opposition to Plaintiffs' Motion to Lift Stay and for Summary Judgment — Feds for Medical Freedom v. Biden (Dkt. 52)

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Defendants' Memorandum in Opposition to Plaintiffs' Motion to Lift Stay and for Summary Judgment in Feds for Medical Freedom v. Biden, Civil Action 3:21-cv-00356, Document 52, filed 06/02/23, in the U.S. District Court for the Southern District of Texas, Galveston Division. Defendants argue that the case should remain stayed pending final resolution of their appeal from the preliminary-injunction order, noting that they have until June 21, 2023, to petition the Supreme Court for a writ of certiorari. The memorandum states that Executive Order 14043 was revoked on May 9, 2023 and that the Fifth Circuit's mandate issued on May 15, 2023. It asks, if the stay is lifted, that the Court do so only to determine mootness, and says Defendants would move to dismiss as moot by June 22, 2023.

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“Defendants' Memorandum in Opposition to Plaintiffs' Motion to Lift Stay and for Summary Judgment — Feds for Medical Freedom v. Biden (Dkt. 52).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-txsd-1855108-52-0-3432c90329/, SHA-256 3b6c79696c0b6fae4ce06c2a5dacac1a4630c2ab232f1b3fd00bdcdb645de2e9.

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Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

FEDS FOR MEDICAL FREEDOM, et al.,

Plaintiffs, Civil Action 3:21-cv-00356

JOSEPH R. BIDEN, JR., in his official
capacity, et al.,

Defendants.

DEFENDANTS’ MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION TO LIFT STAY AND FOR SUMMARY JUDGMENT

On March 23, 2022, the Fifth Circuit sitting en banc affirmed this Court’s order

granting a nationwide preliminary injunction against enforcement of Executive Order 14043.

See Feds for Medical Freedom v. Biden, 63 F.4th 366 (5th Cir. 2023). Subsequently, on May 9, 2023,

President Biden revoked Executive Order 14043 (as well as Executive Order 14042, applicable

to federal contractors), effective at 12:01 a.m. on May 12, 2023. See Exec. Order No. 14099,

88 Fed. Reg. 30,891 (May 9, 2023) (“Revocation Executive Order”). The Fifth Circuit’s

mandate then issued on May 15, 2023. See Judgment on Rehearing En Banc, ECF No. 50.

Now, Plaintiffs ask this Court to lift its stay on further proceedings and summarily award

declaratory and permanent injunctive relief to them. But Defendants respectfully submit that

this litigation should remain stayed pending final resolution of their appeal from the Court’s

preliminary-injunction order, and that, in any event, it would be inappropriate for the Court

to enter final relief at this time.

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Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 2 of 5

The stay remains justified for substantially the same reasons that warranted it in the

first place. After this Court entered a nationwide preliminary injunction against enforcement

of Executive Order 14043, Defendants appealed and moved “to stay further litigation, pending

final resolution of the preliminary injunction appeal.” See Defs.’ Mot. to Stay, ECF No. 44, at

1. In their motion, Defendants explained that the resolution of the appeal could provide

“substantial” guidance relevant to any further proceedings, and that Plaintiffs would face “no

threat of harm from the Executive Order” in the interim. Id. at 3. Finding Defendants’ motion

“well taken,” the Court stayed this case.

The issuance of the Fifth Circuit’s mandate does not undermine the reasons for the

present stay. The Solicitor General is responsible for determining whether to seek further

review of the Fifth Circuit’s decision, see 20 C.F.R. § 0.20(a), and no determination has been

made at this time. Specifically, Defendants have until June 21, 2023 to petition the Supreme

Court for a writ of certiorari in its appeal from this Court’s preliminary-injunction order. Until

the time for Defendants to seek further review has passed, or any proceedings before the

Supreme Court have concluded, Defendants’ appeal has not been finally resolved. Such final

resolution was expressly contemplated by Defendants’ original (and “well taken”) motion to

stay. And given that further action by the Supreme Court may yet inform subsequent

proceedings in this Court, and because there continues to be no threat of harm to Plaintiffs in

the interim, there is no compelling reason to reverse course now.

Even if the Court were inclined to lift the stay at this time, it would be inappropriate

to summarily enter final judgment in favor of Plaintiffs without further proceedings. As the

Fifth Circuit emphasized, its decision involved only a “preliminary injunction,” Feds for Med.

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Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 3 of 5

Freedom, 63 F.4th at 389, and many issues remain to be determined, particularly mootness. Cf.

id. (noting the need for the parties to “grapple” with the end of the COVID-related emergency

in subsequent district court proceedings). And even setting aside mootness, Defendants have

not yet even responded to Plaintiffs’ complaint and this Court still would need to conduct

further proceedings on the merits before entering any final judgment. See, e.g., Feds for Med.

Freedom, 63 F.4th at 389 (“When the parties proceed to the merits in the district court, the

plaintiffs will have to prove that whatever injunction they request is broad enough to protect

against their proven injuries and no broader. And the Government will have another chance

to show that any permanent injunction should be narrower than the preliminary one.”).

Accordingly, the Court should reject Plaintiffs’ premature request for summary judgment and

final declaratory and injunctive relief.

If the Court is inclined to lift the stay, it should do so for the limited purpose of

determining mootness. Plaintiffs preemptively attempt to wave away their mootness problem

by invoking the voluntary-cessation exception to mootness, but that exception has no

application here. Cf. Freedom From Religion Found., Inc. v. Abbott, 58 F.4th 824, 833 (5th Cir.

2023) (noting that “‘[w]ithout evidence to the contrary, we assume that formally announced

changes to official governmental policy are not mere litigation posturing,’” and “the

government’s ability to reimplement the statute or regulation at issue is insufficient to prove

the voluntary-cessation exception” (citation omitted)). And in any event, the Court should

permit Defendants to affirmatively assert mootness as part of a procedurally appropriate

motion to dismiss in the first instance. If the Court does decide to lift the stay on further

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Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 4 of 5

proceedings in this case, Defendants would be prepared to move to dismiss this case as moot

by June 22, 2023.

Dated: June 2, 2023 Respectfully submitted,

DAMIEN DIGGS
United States Attorney
Eastern District of Texas

/s/ James G. Gillingham
JAMES G. GILLINGHAM
Assistant United States Attorney
Eastern District of Texas
Acting Under Authority Conferred by 28 U.S.C. §
515
Attorney in Charge
Texas Bar #24065295
110 N. College Street; Suite 700
Tyler, Texas 75702
Telephone: (903) 510-9346
Facsimile: (903) 590-1436
James.Gillingham@usdoj.gov

Counsel for Defendants

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Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 5 of 5

CERTIFICATE OF SERVICE

I certify that on June 2, 2023, a true and accurate copy of the foregoing document was
filed electronically (via CM/ECF) and served on all counsel of record.

/s/ James G. Gillingham
JAMES G. GILLINGHAM

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